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Hong Kong Law Reform Commission |
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2.1 In
this chapter we begin our examination of the substantive law on child custody
and access in
2.2
2.3 In
this chapter, we focus on the important legal concepts on which much of this
legislation is based. We discuss
the principles which govern the granting of custody and access orders in family
cases, and review the procedures for obtaining a divorce in
2.4 There are certain key concepts on which the legal parent-child relationship is based. Unfortunately, these have come to be expressed in the law through "a confusing array of terms in both statutes and cases." [2] An overview of these various concepts, and how they are applied in practice, is set out below.
2.5 In the Guardianship of Minors Ordinance (Cap 13), the term "minor" is used to denote "child." Section 3 of the Interpretation and General Clauses Ordinance (Cap 1) defines a "minor" as a person who has not yet attained 18 years.
2.6 In the Matrimonial Proceedings and Property Ordinance (Cap 192), the term "child" is used, and is defined as including an illegitimate or adopted child of one or both parties to a marriage.[3] The Ordinance goes on to define "child of the family" as a child of both of the parties to a marriage as well as "any other child who has been treated by both those parties as a child of their family." [4]
2.7 The original legal concept of parenthood appears to have been that of "guardianship," a very old concept based more upon the protection of family landholdings than upon the protection of children.[5]
2.8 Guardianship implies the bundle of rights and duties and authority of a parent towards a child. This includes the right to make decisions and to be consulted on decisions about the upbringing of the child and on all aspects of his welfare. Usually a guardian has the right to have custody of the child, which means the right to his physical care and control. When parents divorce or separate, the non-custodial parent may not have the child physically living with him except for access periods, but he will remain under a duty to provide maintenance to support the child.
2.9 Strictly speaking, the terms "parent" and "guardian" may be used synonymously. However a "guardian" more commonly refers to someone (not a parent of the child) who is appointed by will or by court order to have guardianship of the child when one or both of his parents dies.
"The general understanding is that such a person acts as a parent substitute … and arguably should have the same rights and authority as a parent." [6]
2.10 To characterise the parent-child relationship, the term "rights and authority" of the parents towards the child is used in the Guardianship of Minors Ordinance (Cap 13).[7] Though not defined in the Ordinance itself, these rights can be found at common law and in statute. They include:[8]
· the right to live with the child and control the child's day-to-day upbringing
· the right to the physical "possession" and "services" of the child
· the right to choose the child's education
· the right to choose the child's religion
· the right to choose the child's surname
· the right to inflict moderate punishment on the child
· the right to consent to medical treatment for the child
· certain rights to enter into contracts on the child's behalf
· the right to act for the child in legal proceedings
· the right to administer the child's property
· the right to appoint a testamentary guardian for the child
·
the right to consent to an
application for a passport for
the child
·
the right to arrange for the
child to leave or emigrate from
the jurisdiction
· the right to consent to the child's marriage[9]
· the right to consent to the child's adoption.[10]
2.11 There is a general principle of equality of parental rights and authority between the mother and the father when it comes to the exercise of these rights.[11]
2.12 Also, the respective rights and authority of the parents may be exercised independently, "by either without the other."[12] Liu explains the implications of this:
"In other words, one parent can,
for example, decide which school and Sunday church a child should attend, or
which doctor to consult, without consulting the other. This rule is designed to allow each parent,
particularly the one who has day-to-day care and upbringing of the child, to
exercise responsibility and make decisions without having to consult the other,
and the onus is on the objecting parent to raise such an objection in court … ." [13]
2.13 Although the principle of parental rights and authority is broad in its scope, it is, however, still subject to the "welfare principle," [14] so that the exercise of parental rights should be governed by what is in the best interests of the child. Liu comments:
"[P]arental
'rights' reflects a misconception of the nature of the parent-child
relationship. To the extent that
the law enables parents to decide how to bring up their children without
interference from others, it does so primarily because this is a necessary part
of the parents' responsibility for that upbringing and in order thus to promote
the welfare of their children."[15]
2.14 It has also been observed that the significance of parental rights and authority diminishes as the child grows older.[16] Lord Denning has described parental rights as:
"[A] dwindling right which the
court will hesitate to enforce against the wishes of the child, the older he
is. It starts with the right of
control and ends with little more than advice." [17]
2.15 With
regard to parental rights in the wider legal context, we saw in the previous
chapter that a number of overseas jurisdictions have been moving away from the
parent-focused "parental rights and
authority" concept in recent years, towards the more child-focused
concept of "parental
responsibility." [18] This change of emphasis in the law
relating to children, and the extent to which it should be adopted in
2.16 "Custody" comprises the bundle of rights that parents have over their children. This includes the right to "care and control" [20] and the right to make all important decisions affecting the child, such as decisions regarding his education, religion and medical treatment.[21]
2.17 The parent granted custody or even simple "care and control" of the child upon separation or divorce is referred to as "the custodial parent." The parent not granted care and control, or custody in its wider sense, is usually granted "access" to the child and is referred to as "the non-custodial parent." The custodial parent "has a duty to ensure, protect and promote the best interests of the child." [22] The custodial parent may or may not be obliged to consult the non-custodial parent on major decisions affecting the child.[23]
2.18 Section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) provides the only statutory definition of custody, and simply states that: " 'custody '… in relation to a child, includes access to the child."
2.19 In some jurisdictions, an award of legal custody refers only to being granted physical custody of the child (that is, the authority to determine where the child will live on a daily basis), as both parents retain rights as guardians of the child. As noted earlier in this chapter, these rights include the right to be consulted on all major matters affecting the upbringing of the child, such as on health matters, education and religious welfare.
2.20 In
2.21 Access is the right to have contact with the child, such as through letters, emails, telephone calls, visiting the child, taking him out or having him to stay from time to time. As we saw above, the right of access is included within the broader right of custody itself.[28] The degree of access granted can differ, depending on the circumstances of the case.[29] McDonagh states:[30]
"The usual order is one of 'reasonable access' and the parties are left to sort out between themselves the details of how and when access will take place. …In the event that the parties cannot agree arrangements for access, the court can make an order for defined access." (Emphasis added.)
2.22 Francis and Warren elaborate further on these terms:[31]
"Reasonable access [is an]
arrangement whereby parties agree that the parent without care and control can
see the child whenever it is reasonable and agreeable by both parties. The timetable for access is agreed upon
by the parents rather than imposed by the court and arrangements can be
flexible. … Defined access [is] where the time, and sometimes place, of the
access is specified in the court order – for example, every Saturday from
2.23 Sometimes the court may order "supervised access." This is where access by the non-custodial parent is supervised by the custodial parent or a relative, or some other third party such as a social welfare officer.[32] This would only be ordered where there is a compelling case, such as a perceived danger to the child of abduction, abuse or neglect.[33]
2.24 As access is a generic term and is not defined in the relevant Ordinances, most of the law in relation to access is to be found in case precedent.[34]
2.25 It is important to note that access is regarded as the right and privilege of the child, not the parent.[35]
2.26 As
we have noted earlier, custody in
2.27 The order for sole custody has practical implications on a day-to-day basis as well. For example, schools will not generally send a child's school reports to the non-custodial parent. There are also potential problems if the non-custodial parent has to take the child for urgent medical treatment during a period of access, as the access parent's capacity to give consent to the treatment may become an issue.
2.28 Liu observes that, in some sole custody cases, the parent-child relationship between the child and the non-custodial parent may be effectively ended by a change in the custodial parent's personal circumstances:[37]
"The competing rights
of a custodial parent and a parent with access was considered in Hunt v
Hunt.[38] There the father had
custody and the mother was given access to her children. The father, an army officer, was posted
to
2.29 Another type of custody order, the "split order," [39] vests daily care and control in one parent and gives custody, in the sense of wider decision-making power, to the other parent. Liu comments that this order "aims to preserve a role for the absent (but yet custodial) parent on major decisions concerning the child's upbringing." [40] She goes on to note, however, that a split order "is unworkable where parents cannot agree and co-operate on matters relating to the upbringing of the child." [41]
2.30 In
Lo Chun Wing Yee v Lo Pong Hing,[42]
the original custody order had been a split order. However, the post-divorce relationship
between the parents had deteriorated and the parties could no longer co-operate
with each other. The mother
therefore sought an order of sole custody as she had care and control of the
child in
"[C]ourts were generally reluctant to grant or endorse split orders unless the advantages demonstrably outweighed the inherent disadvantages. Total lack of co-operation between the father and the mother, perpetual absence of the father from the jurisdiction and the undesirability of having more than one voice in the running of the daily affairs of the child fortified the need for removal of the split order. By vesting sole legal custody in the mother, it would not prevent the father from making a real contribution to the upbringing of the child." [43]
2.31 The judge stated that in this case, sole custody would facilitate the management of affairs for the welfare and benefit of the child and enable decisions to be made promptly.[44]
2.32 Joint custody is where the court grants custody to both parents, although physical care and control is usually granted to only one of them.[45] Liu explains the rationale behind the joint custody order: that instead of one party being given the right to decide important matters affecting the upbringing of the child, both parties are given that right. "Such order symbolises divorced or separated parents playing a joint role in the upbringing of the child, and neither is excluded." [46]
2.33 It appears that the English courts were in the past always reluctant to grant such orders, holding that they were only appropriate where there was a reasonable prospect that the parties would co-operate.[47] One such case was Jussa v Jussa, in which Wrangham J stated that:[48]
"Where you have a case such as the present case, in which the father and mother are both well-qualified to give affection and wise counsel to the children for whom they are responsible, and where they appear to be of such calibre that they are likely to co-operate sensibly over the child for whom both of them feel such affection … it seems to me that there can be no real objection to an order for joint custody."
2.34 Until recent years, this order was "almost unknown" in Hong Kong,[49] as it was seen as implying joint physical custody and thus "competing homes, causing confusion and stress on the child." [50] It was also seen as implying a duty on the parent having care and control to consult the other parent on all matters concerning the child. As we will see later in this report, it is possible to apply the joint custody model in such a way that these perceived limitations do not exist.
2.35 The concept of "the welfare of the child," though not defined in legislation, is said to lie "at the heart of all litigation regarding children." [51] Other terms used in this context which have a similar meaning include "the interests of the child" and "the best interests of the child." [52]
2.36 The purpose of "the welfare principle" is to guide the court in its decision-making in cases involving children.[53] Its effect is to require the court to take into account what is in the best interests of the child over and above what is best for any adults involved in the litigation.[54]
2.37 The welfare principle is said to be an evolving concept which encapsulates the widest possible meaning.[55] It is not confined to considerations of money and physical comfort for the child, but includes consideration of his social, intellectual, moral and religious welfare, as well as his ties of affection.[56]
2.38 As we will see further in the next chapter, the Guardianship of Minors Ordinance (Cap 13) is one of the Ordinances which governs court proceedings relating to the custody and upbringing of children.[57]
2.39 Section 3 of the Ordinance sets out the principles that govern the conduct of court proceedings where the Ordinance applies. Section 3(1) states that:
"In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court ... the court:
(i) shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing ... ."
2.40 This provision clearly indicates that the welfare of the child is to be the first and paramount consideration of the court in determining custody issues and other matters relating to the upbringing of a child.
2.41 Unfortunately, the Ordinance does not provide any statutory definition of "welfare," nor does it provide any comprehensive list of the factors or considerations which the court should take into account in determining what constitutes the welfare or best interests of the child. This does not mean that cases are decided in a vacuum, however.[58]
2.42 Cases on point suggest that there are certain key factors to which the courts have regard.[59] These include:
· the wishes and rights of the child (considered in relation to his age and level of understanding);
· the child's physical, emotional and educational needs;
· the desirability of maintaining continuity of care for the child and the likely effect on him of any change in circumstances;
· the child's age, sex, background and particular personal characteristics;
· any harm that he has suffered or is at risk of suffering; and
· the capacity of each parent, or relevant third party, to care for the child and to meet his needs.[60]
2.43 Each of these factors is considered below.
2.44 This is obviously a difficult and sensitive area. The legislation requires the court to take into consideration the wishes of the child, but prescribes no methods for ascertaining these wishes. Older cases show a tendency for judges to interview the children themselves in chambers to ascertain their wishes,[61] but it is now recognised that this discretion to see the children "should be exercised cautiously and should in no sense be automatic or routine." [62] As one judge has commented:
"The difficulty
[was] that there was an inherent contradiction in seeing the children for the
purpose of ascertaining their wishes[63]
whilst, at the same time, being required to report to their parents anything
material which the children said. The children … are in an impossible
dilemma, which can only add to the emotional trauma to which they are already
subject. Any expression of a
preference for one parent inevitably involves disloyalty to the other." [64]
2.45 In any event, the weight the court might ascribe to any wishes expressed by the child depends upon the child's age and level of understanding.
"A six-year-old child's wishes
could often be ephemeral, changing from day to day in which case little or no
weight should be given to his preferences.
Conversely, the wishes of a 15-year-old boy, unless they were plainly
contrary to his long-term welfare, could not be ignored lightly." [65]
2.46 While judges do not have to receive training in child psychology or the psychological process of divorce, they will receive assistance in these matters from the reports of the Director of Social Welfare or a child psychologist or other expert used by the parties. The social welfare report prepared for the case will usually contain advice for the court on any wishes expressed by the child.
2.47 The needs of children will vary depending upon their particular age and sex. Liu comments, "[p]hysical and emotional needs are of paramount importance to an infant, whereas discipline and education can be crucial to a young child." [66]
2.48 In
Re Huthart
(infants),[67]
care and control of an 11 year old girl was given to the father, who, compared
to the mother, was seen to have a sensible appreciation of the need to properly
discipline his daughter. The
importance of education was stressed in May
v May,[68]
where the care and control of two boys, aged eight and six, was given to the
father because, amongst other things, "he
had placed greater emphasis on their character development through academic
achievement and discipline in the home than had the mother and her lover with
whom she was living."[69]
2.49 Liu notes that maintaining the status quo, or "the state in which things are," has become a vital consideration in welfare,[70] and includes maintaining existing relationships, emotional bonds and physical environment. This was not always the case, as in the past, "judges would dismiss a child's grief in parting with the primary care-giver as transitory." [71] It is now recognised that:
"[D]isruption of the status quo and the separation of the child from his psychological parent may be highly detrimental to his mental and physical well-being." [72]
2.50 What this means in practice is that when a couple separates, the parent who continues to look after the child may have an advantage over the other parent, as "the court is likely to confirm the existing arrangement, rather than order a transfer of custody." [73] Not surprisingly, this principle of maintaining the status quo "presents a strong argument against a party who has lost contact with a child." [74]
2.51 An example of this in operation is the case of Re Lee Cheuh-wah (an infant),[75] where, even though the father had effectively kidnapped the child a few years before, the court was reluctant to disturb the status quo once the child was found living with his paternal grandparents, as he appeared well-settled and happy.
2.52 The importance of maintaining the status quo is much reduced, of course, where a child is close to both parents and familiar with their respective homes. It is recognised that in these cases, "the disruption caused as a result of a change in custody will be much less." [76]
2.53 Liu comments that the age of the child is relevant in that it relates to his needs, which in turn may point to which parent is best suited to fulfil those needs. She notes that judicial statements can be found to the effect that: "all things being equal, a child of tender years should be with its mother." [77]
2.54 As
with the other "welfare"
considerations, this issue cannot be considered in isolation but must always be
looked at in light of the other facts of the case. In
2.55 Related to this "tender years doctrine" is a principle that:
"[Y]oung
siblings should, wherever possible, be brought up together in the same
household so that they can be of emotional support to each other. If a judge decides against young
children being kept together, such decision merits some explanation." [79]
2.56 This factor is relevant where:
"[A] parent has
neglected or abused (sexually or physically) the child and the court needs to
balance the importance of the child maintaining a relationship with that parent
against the risk of being harmed by such relationship." [80]
2.57 As a result, a parent who has sexually abused his child may be denied access by the court. This is not always the case, however.[81] Liu contrasts the cases of Re R (a minor) (child abuse: access)[82] with L v L (child abuse: access).[83] In the former, it was held that any benefit to the child of access by the father had no weight compared to the possible risk of further sexual abuse by him. In the second case, the court found that, although the father had sexually abused his three year old daughter, a close bond nonetheless existed between them and access was granted to the father subject to further review.
2.58 In a custody dispute, the court favours the parent who has established strong emotional ties with the child, appreciates the child's needs and is capable of meeting them.[84]
2.59 Where the dispute is between a parent and a third party (such as a grandparent or foster parents), the extent to which blood ties are important is unclear.[85] In one case, where care and control of a child was granted to the child's foster parents rather than to his parents, the court stated that, nonetheless:
"[N]atural
parents have a strong claim to have their wishes considered; first and
principally, no doubt, because normally it is part of the paramount
consideration of the welfare of the infant that he should be with them, but
also because as the natural parents they have themselves a strong claim to have
their wishes considered as normally the proper persons to have the upbringing
of the child they have brought into the world." [86]
2.60 All of the factors above are taken into account by the court in determining what constitutes the welfare or best interests of the child.
2.61 As noted earlier in this chapter, the welfare of the child is to be "the first and paramount consideration" of the court in hearing any proceedings under the Guardianship of Minors Ordinance (Cap 13). Lord MacDermott, in J v C,[87] approached the term thus:
"[R]eading these words in